In re: A LAND DEVELOPMENT REGULATION
ADOPTED BY ISLAMORADA
VILLAGE OF ISLANDS
ORDINANCE NO. 08-10
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FINAL ORDER
The Department of Community Affairs (the Department) hereby issues its Final Order, pursuant to §§ 380.05(6), Florida Statutes, and § 380.0552(9), Florida Statutes (2008), approving a land development regulation adopted by a local government within the Florida Keys Area of Critical State Concern as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of critical state concern, and Islamorada, Village of Islands is a local government within the Florida Keys Area.
2. On December 29, 2008, the Department received for review Islamorada, Village of Islands Ordinance No. 08-10 (Ord. No. 08-10) adopted by the Village on December 18, 2008.
3. Ord. No. 08-10 amends Chapter 30 Land Development Regulations, Article IV Administrative Procedures, Division 12 Transfer of Development Rights of the Village Code of Ordinances.
4. The purpose of Ord. No. 08-10 is to amend the method for transferring development rights, both residential and non-residential, between properties within the Village and to establish that tropical hardwood hammock on the sender site shall be restored or mitigated.
CONCLUSIONS OF LAW
5. The Department is required to approve or reject land development regulations or portions thereof that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. §§ 380.05(6), Florida Statutes, and § 380.0552(9), Florida Statutes (2008).
6. Islamorada, Village of Islands is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Florida Statutes (2008), and Rule 28-29.002 (superseding Chapter 27F-8), Florida Administrative Code.
7. Land development regulations include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Florida Statutes (2008). The regulations adopted by Ord. 08-10 are land development regulations.
8. All land development regulations enacted, amended or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the Principles) as set forth in § 380.0552(7), Florida Statutes (2008). See Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), affd, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions.
9. Ord. 08-10 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation.
(b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
(c) To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation, dune ridges and beaches, wildlife, and their habitat.
10. Ord. 08-10 is not inconsistent with the remaining Principles. Ord. 08-10 is consistent with the Principles for Guiding Development as a whole.
11. Ord. 08-10 is consistent with the Village Comprehensive Plan Policy 1-3.1.4: Institute a Program for Transfer of Development Rights; Policy 1-4.2.1: Implement Comprehensive Plan Through Land Development Regulations; and Policy 1-2.6.2: Equitable Treatment of Privately Owned Conservation Lands.
WHEREFORE, IT IS ORDERED that Ord. 08-10 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below.
DONE AND ORDERED in Tallahassee, Florida.
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCYS ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENTS ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, PETITION FOR ADMINISTRATIVE PROCEEDINGS WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENTS OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 28-106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH SUBSECTION 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.
_________________________________
CHARLES GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below by the method indicated this 18th day of February, 2009.
___________________________
Paula Ford, Agency Clerk
By U.S. Mail:
Honorable Cathi Hill, Mayor
Islamorada, Village of Islands
Post Office Box 568
Islamorada, FL 33036
Beverly Raddatz, Village Clerk
Islamorada, Village of Islands
Post Office Box 568
Islamorada, FL 33036
Nina Boniske, Esq.
James White, Esq.
Weiss Serota Helfman Pastoriza
Guedes Cole & Boniske, P.A.
2525 Ponce De Leon Blvd., Suite 700
Coral Gables, Florida 33134-6045
